Who Would Be Your Advocate in a Crisis?

Last week I had a great phone conversation with someone who had attended a seminar of mine in the past. The caller was exploring long-term care options, and we have a very enjoyable conversation about the pros, cons, and unknowns (that is an entirely different article from this post).  The caller raised a key question when updating or creating an estate plan "who do I know who is savvy enough to understand this long-term care contract, because if it comes into play, I'm not healthy enough to advocate for myself?"

Excellent question.  All too often I see people with a knee-jerk response to the question who do you want to list as your agent on the power of attorney for finance.  My son, because he is the oldest or my sister, because if I do not she'll nag me until the day I die -- all things I have heard from clients.  And in my opinion insufficient.  If you are too sick to make your financial decisions, who in your circle of family or friends has the time, knowledge, backbone and sophistication to navigate your insurance contract, file your taxes, pay the mortgage and manage your checkbook.   Remember, if that circle does not contain an appropriate candidate you can always turn to a professional.  Banks, trust departments and accountants are all businesses with the desired skill set.

Thanks for reading, and remember, a blog is not legal advice.  Please consult an attorney in your state for advice specific to your situation.

Relatives vs. Family

Estate planning essentially answers who and what questions.  Who will be in charge when you are either to sick to act or have died, and what will happen to your assets.  One of the top five questions clients pose during meetings is "can I name someone other than a family member?"  Without hesitation, my answer is "yes, it is about taking control, name who is right for the job."  What follows is a discussion of the skill set needed to be an agent under a power of attorney for health, or finance, or a personal representative for a will.  However, before we get to that discussion I encourage you to pause and ask -- who is your family?

Asked to define family, I would say they are the people who share your life.  They are there for celebrations, for mourning, and the mundane.  On the other hand, relatives share your DNA or a branch on a family tree. Sometimes relatives can also be family, but not always.  Before instinctively naming your brother or an aunt in a role, ask yourself -- are they family, or just a relative?  If the later, look to someone who falls into the category of your family instead.

How do you tell the difference?  Here are a few points to ponder -- what makes someone family, at least in my book:

• you have shared a meal together in the past year;
• after major surgery they have helped you with getting dressed and or transported home;
• if you have young children, they have spent time in that child's bedroom playing;
• you communicate with them in person, on the phone, or via email once a month.  Facebook and other social media do not count;
• if you have a pet they have cuddled the animal or if not a pet person, shooed the critter away; or
• when life gives you a joy or sorrow, this is a person you reach out to to share.

It is my experience that far too many people equate relationships recognized in state statute as being the same as family.  This week I will lean on my own advice -- it is one in which we will pay tribute to my mother, who's earthly life ended in February.  Reminding myself to focus my energies and efforts on the family who walked by my side, sent words of support, dropped off meals, or watched our young children so I could have a few final hours at my mom's side.  On the periphery will be relatives, sadly ones with requests harboring on the edge of being demands.  They appear unable to understand that the phrase "the immediate family" is not a status automatically granted to those who share DNA or a last name, but rather to those who share a life. At least in my opinion.

Be well, and thank you for reading.  Please remember, a blog is not legal advice -- seek the advice and counsel of an attorney licensed in your home state.

Book Review -- What Do We Tell the Children: Talking to kids about death and dying

With my mother dying this past February, the topic of talking to children about death and dying has been on my mind.  And it is a topic that sometimes comes up in the office.  When the book What Do We Tell The Children? Talking to kids about death and dying by Joseph M. Primo arrived on my hold shelf at our local library I was eager for some advice.

Primo is the executive director of Good Grief, Inc, a nonprofit in New Jersey.  He holds a divinity degree and is a former hospice chaplain.  Consisting of eight chapters and just under 130 pages, it is an approachable book.  The reader is drawn in by Primo's own story of his first experience of death; he was a teen when an aunt died suddenly at a family gathering.  His story highlights how society used to talk to children about death -- essentially not at all.

The book then continues much in the style of a memoir, pulling from stories during his time with hospice and then Good Grief, Inc.  As a fan of memoirs, I enjoyed the book.  However, as a parent needing to answer questions about death to my five and three year old, I did not find the book to be a great resource.  It is less how-to more more of a survey of what society has done and could do.  The stories are moving and sometimes powerful, but the format does not let a flustered parent quickly access tips on answering questions.  I would have preferred an organization that allowed me to focus on age appropriate answers, what happened to Grandma is addressed quite differently to a 16 year old versus a 4 year old.  And then there is the religion factor.  Ours in an atheist home, and stories from the bible are of no help to us.  Again, a book with sections for various religious view points would have been more useful.

Overall I enjoyed the book, Primo is a nice storyteller. However, it was not the book I expected to read.

Survivorship In the Context of Estate Planning and Probate

Image from www.sxc.hu, #921217

Imagine a car is traveling on the interstate, heading out for a much needed Spring Break.  At the wheel is a newly minted driver, 16 year old Todd.  In the passenger seat is his proud mother Sharon, navigating the GPS instructions taking them to the Sunshine State for some good times.  At home remains Todd's pet dog Tuffy, left in the care of his father, Ted, the ex-husband of Sharon.  In the blink of an eye a tire flies off a passing vehicle.  The inexperienced Todd over-corrects and a violent collision occurs.  When rescue crews arrive Sharon is declared dead on the scene.   Todd is airlifted to the nearest trauma hospital where he dies. What happens to Sharon's estate?

If she did not have a will, state statute controls.  Here in Wisconsin her probate estate would pass to her son as long as he outlived her by 120 hours.  Should Todd die the following day, he would not have survived and Sharon's estate would pass to her next heirs-at-law, her parents if they are living (assuming Todd had no children of his own or other siblings from his mother).  If not, then on to Sharon's siblings.  Should Todd outlive Sharon by 3 weeks he would have survived her, inherit her estate, and then died intestate (no will) with state statues leaving his assets (those that he just inherited from his mom) to his father, Ted.  Yes, whether Todd dies before or after 120 hours determine whether or not Sharon's assets would eventually pass to her ex-husband.  

Survivorship, outliving another from which you will inherit, is not a simple issue.  If a will controls the distribution of property it likely contains a suvivorship clause, meaning in order to inherit, one needs to outlive the decedent by a certain number of days.  The documents we draft in our office generally call for a 90 day survivorship.  Residents of Wisconsin without a will fall under state statue requirements of 120 hours (5 days) in order for another to inherit.  Wisconsin Statutes, Section 854.03(1) states:

854.03  Requirement of survival by 120 hours.(1)  Requirement of survival. Except as provided in sub. (5), if property is transferred to an individual under a statute or under a provision in a governing instrument that requires the individual to survive an event and it is not established that the individual survived the event by at least 120 hours, the individual is considered to have predeceased the event.

Do not assume that just because someone died after another that the statutes, or a governing document, will agree on that person having survived.  As you can see with this hypothecial, survival is conditioned on surviving for a certain amount of time.  That time varies from state to state, and document to document. Consult with an attorney to learn more about your specific situation.

Thanks for reading, and if you are head out on Spring Break, be safe and buckle up when behind the wheel.